Ms C Dynott v KMS (Scotland) Ltd — 2020

This was an open preliminary hearing on the respondent's applications to strike out the claimant's unfair dismissal and Working Time Regulations claims, or alternatively to order deposits. The claimant did not attend, but she was represented by Mr Ibekwe. At the start of the hearing, the Equality Act claims referred to in paragraphs 2.3.1 and 2.3.2 of the particulars of claim were withdrawn, and the tribunal dismissed them on that withdrawal.

The tribunal refused to strike out the claim for unfair dismissal under regulation 7 of the TUPE Regulations and the ordinary unfair dismissal claim under section 98 ERA 1996. It accepted that the reason for dismissal was disputed: the claimant said she was dismissed after the transfer, while the respondent said she had applied for and been granted voluntary redundancy and relied alternatively on an economic, technical or organisational reason defence. Those issues could not be resolved without evidence at a full merits hearing, so the tribunal was not satisfied that the claims had no reasonable, or even little reasonable, prospect of success.

The Working Time Regulations claims under regulations 14 and 16 were also allowed to proceed. The respondent relied on a letter dated 31 July 2020 stating that the claimant's holiday entitlement to 31 October 2020 was 22.25 days and giving notice to take those days as holiday in October 2020. The tribunal noted that the claimant had been on furlough throughout the period and had not been taken to the detailed government guidance on holiday during furlough, so it was not satisfied that the WTR claims should be struck out or that a deposit order was justified.